Obesity remains a serious health problem and it is no secret that many people want to lose weight. Behavioral economists typically argue that “nudges” help individuals with various decisionmaking flaws to live longer, healthier, and better lives. In an article in the new issue of Regulation, Michael L. Marlow discusses how nudging by government differs from nudging by markets, and explains why market nudging is the more promising avenue for helping citizens to lose weight.

Two long wars, chronic deficits, the financial crisis, the costly drug war, the growth of executive power under Presidents Bush and Obama, and the revelations about NSA abuses, have given rise to a growing libertarian movement in our country – with a greater focus on individual liberty and less government power. David Boaz’s newly released The Libertarian Mind is a comprehensive guide to the history, philosophy, and growth of the libertarian movement, with incisive analyses of today’s most pressing issues and policies.

Supporters of the Obama health law are incorrectly reading the Supreme Court’s ruling as a victory.

First, the ruling severely limited the Obama health law’s Medicaid expansion, effectively giving states the green light to refuse to expand their Medicaid programs. Coupled with the fact that the statute already enables states to block the other half-trillion dollars of new entitlement spending, the law is in a very precarious position.

Second, the Court ruled 5-4 that the individual mandate is not a legitimate use of the Commerce Power. That too is a defeat for the government, even if it is of no immediate consequence.

Third, while the Court upheld the individual mandate as a tax, that ruling may be vulnerable to legal challenge.

Chief Justice Roberts wrote, “The Federal Government ‘is acknowledged by all to be one of enumerated powers,’” and, “The Constitution’s express conferral of some powersmakes clear that it does not grant others.” So it is interesting that Roberts did not specify exactly what type of constitutionally authorized tax the mandate is.

As Cato chairman Bob Levy wrote in 2011, that’s not an easy thing to do:

Assume, however, the Supreme Court ultimately disagrees and finds that the penalty for not purchasing health insurance is indeed a tax. Nevertheless, say opponents of PPACA, the tax would be unconstitutional. They underscore that taxes are of three types—income, excise, or direct. Each type must meet specified constitutional constraints. Because the mandate penalty under PPACA does not satisfy any of the constraints, it is not a valid tax.

Income taxes, authorized by the Sixteenth Amendment, must (by definition) be triggered by income. Yet the mandate penalty is triggered by the nonpurchase of insurance. Except for an exemption available to low-income families, the amount of the penalty depends on age, family size, geographic location, and smoking status. So the penalty is not an income tax.

Excise taxes are assessed on selected transactions. Because the penalty arises from a nontransaction, perhaps it qualifies as a reverse excise tax. If so, it has to be uniform across the country (U.S. Const., Art. I, sec. 8). But the penalty varies by location, so it cannot be a constitutional excise tax.

Direct taxes are assessed on persons or their property. Because the penalty is imposed on nonownership of property, perhaps it could be classified as a reverse direct tax. But direct taxes must be apportioned among the states by population (U.S. Const., Art. I, sec. 2). The mandate penalty is assessed on individuals without regard to any state’s population. Hence, it is not a lawful direct tax.

On the last point, Roberts agreed: ”A tax on going without health insurance does not fall within any recognized category of direct tax.” But then what kind of constitutionally authorized tax is it?

The dissent suggests the Court has given this issue scant attention:

Finally, we must observe that rewriting [the mandate] as a tax in order to sustain its constitutionality would force us to confront a difficult constitutional question: whether this is a direct tax that must be apportioned among the States according to their population. Art. I, §9, cl. 4. Perhaps it is not (we have no need to address the point); but the meaning of the Direct Tax Clause is famously unclear, and its application here is a question of first impression that deserves more thoughtful consideration than the lick-and-a-promise accorded by the Government and its supporters. The Government’s opening brief did not even address the question—perhaps because, until today, no federal court has accepted the implausible argument that [the mandate] is an exercise of the tax power. And once respondents raised the issue, the Government devoted a mere 21 lines of its reply brief to the issue…At oral argument, the most prolonged statement about the issue was just over 50 words…One would expect this Court to demand more than fly-by-night briefing and argument before deciding a difficult constitutional question of first impression.

There is even less discussion about what type of constitutionally authorized tax the mandate is.

I’m not a lawyer. But it seems to me there may be room here for the same individual citizens who brought this case to again file suit against the federal government for trying to impose an unconstitutional tax. It may seem unlikely that Roberts would reverse himself on the Tax Power issue. Then again, since he never specified what type of constitutionally permissible tax the mandate is, perhaps voting to strike the mandate would not be reversing himself.

Back in June, I wrote about a law review article I had just completed that detailed my first year or so of activities surrounding the Obamacare lawsuits. Well, now it’s officially published, in the Florida International University Law Review. Here’s the abstract:

This article chronicles the (first) year I spent opposing the constitutionality of Obamacare: Between debates, briefs, op-eds, blogging, testimony, and media, I have spent well over half of my time since the legislation’s enactment on attacking Congress’s breathtaking assertion of federal power in this context. Braving transportation snafus, snowstorms, and Eliot Spitzer, it’s been an interesting ride. And so, weaving legal arguments into first-person narrative, I hope to add a unique perspective to an important debate that goes to the heart of this nation’s founding principles. The individual mandate is Obamacare’s highest-profile and perhaps most egregious constitutional violation because the Supreme Court has never allowed – Congress has never claimed – the power to require people to engage in economic activity. If it is allowed to stand, then no principled limits on federal power remain. But it doesn’t have to be this way; as the various cases wend their way to an eventual date at the Supreme Court, I will be with them, keeping the government honest in court and the debate alive in the public eye.

Go here to download “A Long Strange Trip: My First Year Challenging the Constitutionality of Obamacare.”

Developments in the Obamacare lawsuits are coming at us so quickly that it’s hard to keep up. After a month and a half of speculation on what the administration would do after it lost in the 26-state/NFIB lawsuit (Florida v. U.S. Dept. of Health & Human Services), in the last week the D.C. Circuit heard argument in yet another case on appeal, the government decided not to seek en banc review in the Eleventh Circuit, yesterday we went from zero to three cert. petitions in that case, and the government filed a reply in the Thomas More (Sixth Circuit) case. Here’s a breakdown:

1. D.C. Circuit Argument

This past Friday, the D.C. Circuit heard the appeal of Seven-Sky v. Holder (in which Cato filed this brief). There wasn’t much media coverage, in part because the reporting came in on a Friday afternoon but more because the appellate developments after the Eleventh Circuit created a split from the earlier pro-government Sixth Circuit ruling are somewhat anticlimactic – because the action has moved to the Supreme Court. I attended the hearing and can report a few key points:

(a) The government still has not managed to come up with an example of something it cannot do under its reading of the Commerce Clause. This is shocking. Solicitor General Verrilli (who did not argue here), a word of unsolicited advice before Justice Scalia asks you the same question: come up with a couple of outlandish things and move on. Unless, you know, you think the government really can do anything it wants if a congressional majority exists for it.

(b) Judge Bret Kavanaugh, Bush II appointee and rising star in the conservative judicial establishment, had some serious concerns regarding the Anti-Injunction Act (the jurisdictional issue on which the Fourth Circuit based its decision to dismiss the Liberty University case). Beth Brinkmann, arguing for the government and after floundering on the Commerce Clause (see above), seemed to have done a great job in putting Kavanaugh’s mind at ease – or at least getting him over the jurisdictional hump.

(c) Judge Laurence Silberman, Reagan appointee and author of many significant opinions over the years, has a really wide interpretation of government power under Wickard v. Filburn, the 1942 wheat-farming case. I’m not sure that puts his vote in danger – he was also the one who most went after the government – but it does raise an eyebrow.

(d) Overall, I cautiously predict a 2-1 ruling in favor of the plaintiffs, but we won’t know till later this fall. For a more detailed analysis of the hearing, see Randy Barnett’s post at the Volokh Conspiracy.

2. No En Banc Review in the Eleventh Circuit

On Monday, the government allowed the deadline for seeking review of the Eleventh Circuit panel ruling by the full court to slip. Commentators, including myself, had speculated that it might file for en banc review in an attempt to push the inevitable Supreme Court ruling past the 2012 election. That didn’t happen, and here was my press statement:

En banc rehearing would have been legally futile and politically damaging, so the government made the correct decision in not seeking it. We can now expect the solicitor general to ask the Supreme Court to review the Eleventh Circuit’s decision to strike down the individual mandate while leaving the rest of Obamacare standing. The certainty that such review will provide to a nation battered by this among so many other pieces of economically harmful administration policies cannot come soon enough.

The government’s inactivity here, as it were, provoked a flurry of coverage. I agree with the analysis that Peter Suderman put up at Reason.

3. NFIB Files Cert. Petition

Early yesterday (Wednesday) morning, the National Federation of Independent Business and two individuals asked the Supreme Court to review the one issue on which they lost before the Eleventh Circuit: severability. That is, despite the government’s concession that at least the community-rating and guaranteed-issue provisions are inextricably tied to the individual mandate, and the obvious practical observation that none of the legislation would’ve passed without the mandate, the Eeleventh Circuit reversed Judge Vinson’s ruling on this point and only struck down the mandate. The petition also makes the point that the Eleventh Circuit case presents the best Supreme Court “vehicle” among all the lawsuits because it most cleanly presents the relevant issues and doesn’t face lingering concerns over standing. It’s a strong and aggressively worded brief which makes for a good read. Here was my press statement:

The NFIB’s cert petition forces the Supreme Court to grapple not simply with the individual mandate’s constitutional defects but with the fatal flaws those defects expose in the overall legislation. The regulatory burden and economic uncertainty – let alone direct financial cost – that Obamacare imposes on individuals, businesses, states, and the nation as a whole are part and parcel of a noxious scheme centered on the individual mandate. The Court should grant this petition and thus begin putting an end to the government’s doomed – and unconstitutional – attempt to control our lives.

Randy Barnett, who’s now part of the NFIB legal team (which is led by veteran appellate litigator Mike Carvin), has this useful post about the petition’s treatment of the Anti-Injunction Act.

4. 26 States File Cert. Petition

On the heels of the NFIB filing, the 26 states in the Florida-led lawsuit filed their own cert. petition yesterday. “Time is of the essence,” lead counsel (and former solicitor general) Paul Clement argues. “States need to know whether they must adapt their policies to deal with the brave new world ushered in by the ACA.” The petition asks the Court to review three questions:

(a) Does the threat to withhold all Medicaid funding if states don’t agree to Obamacare’s onerous new conditions on that program constitute impermissible coercion by the federal government? [The Eleventh Circuit said no.]

(b) May Congress treat states no differently from any other employer when imposing invasive mandates as to the manner in which they provide their own employees with insurance coverage? [This is a new formulation of a claim that hasn’t gotten much attention, and focuses on the somewhat idiosyncratic 1985 Supreme Court decision in Garcia v. San Antonio Metropolitan Transit Authority.]

(c) Does the individual mandate exceed federal power and, if so, can it be severed from the rest of the law?

I’ve only skimmed this petition, but it too is a hard-hitting and elegant presentation of serious issues.

5. Solicitor General Files Cert. Petition

Around lunchtime yesterday, the government filed its own cert. petition. (The parties were all clearly playing a high-stakes game of legal chicken; once the govenment declined to pursue en banc review, the NFIB incorporated that fact into a petition that it had clearly been considering filing preemptively, its co-plaintiff states soon followed, and the government’s hand was forced to throw its petition – which had obviously also been in the final stages – into the filing cascade. Note that yesterday was not any sort of deadline for seeking Supreme Court review!)

The new solicitor general, Donald Verrilli, of course asks the Court to address whether the individual mandate is constitutional, but also, curiously, whether the challenges are barred by the Anti-Injunction Act. On this second point, the government argues that the AIA does not apply but asks the Court to appoint an amicus to argue that it does, effectively to defend the Fourth Circuit’s position. This is unusual. The SG is essentially saying that he would prefer to win on the merits but will accept a technical victory so long as he doesn’t have to argue for it. (This accords with my prediction that the Court will either rule for the plaintiffs or find a procedural way of avoiding the merits while allowing the individual mandate to stand.)

6. Government Responds to Thomas More’s Cert. Petition

There was one actual deadline yesterday, and the government met it: It filed a response (not labeled “opposition” as is typically the case) to the cert petition in Thomas More Law Center v. Obama, the case coming out of the Sixth Circuit. As expected given its earlier filing, the government asked the Court to hold this petition pending resolution of Florida v. HHS. There’s really nothing to this filing beyond expressing that position.

Conclusion

The day we’ve all been awaiting since President Obama signed his health care law in March 2010 – the Supreme Court’s ruling – is nigh. Normally the parties on the other side of cert. petitions have 30 days to respond, after which the Court considers the filings, issues a cert. grant or denial (here a grant of some kind), and sets the case for argument a few months in the future to allow time for briefing on the merits. In Florida v. HHS, however, all the parties – the government, the states, the NFIB/individual plaintiffs – are requesting cert., so I’m not sure what value they or the Court would get from responsive filings (which would be due Oct.27). Regardless of that wrinkle, the Court is likely to grant cert. sometime in November – or in any case by the end of the year – and set argument for March or April.

So we’re on track for a decision that glorious last week of June when the Court releases its most pressing opinions and gets the heck out of Dodge.

SCOTUSblog’s symposium on the constitutionality of Obamacare – to which I contributed, as did Bob Levy – provides a glimpse at the astonishing views of the law’s supporters. It particularly shows how divorced the legal academy’s leading lights are not only from basic constitutional text and structure, but from jurisprudential reality.

Most prominently, in responding to the Eleventh Circuit’s decision striking down the individual mandate (and to Richard Epstein’s symposium essay), storied Harvard professor Laurence H. Tribe criticizes the court for “reflecting what appears to be a widely held public sentiment” that Congress cannot “mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die.” That sentiment is a problem, according to Tribe, because it elevates form over substance. That is, just as it has done with Social Security, Congress could (under modern jurisprudence, which is wrong as a matter of first principle but not at issue in the Obamacare lawsuits) levy another income or payroll tax and use that revenue to provide health insurance and/or care for otherwise uninsured individuals:

Put otherwise, Congress may undoubtedly use its taxing power to mandate that individuals pay for coverage supplied by private insurers, so long as it acts in two steps: step 1, impose a tax, and step 2, use the proceeds of the tax to fund privately provided health insurance for each individual. If Congress may accomplish this objective in two steps, why not in one? No federalism or liberty-related concern, whether the dignity of the states or that of individuals, is served by denying Congress that authority.

Tribe’s reasoning echoes Justice Breyer’s reason (in dissent) for rejecting the notion that the Takings Clause applies when the Government orders an individual to pay another individual, in the case of Eastern Enterprises v. Apfel:

The dearth of Takings Clause author­ity is not surprising, for application of the Takings Clause here bristles with conceptual difficul­ties. If the Clause applies when the government simply orders A to pay B, why does it not apply when the government simply orders A to pay the government, i.e., when it assesses a tax?

But there is a very good reason why courts should deny Congress the power to compel individuals to purchase products from private parties or, for that matter, the power to order A to pay B – even if a similar result could be accomplished through the taxing power: political accountability. As Georgetown law professor (and Cato senior fellow) Randy Barnett explains:

Like mandates on states, economic mandates undermine political accountability, though in a different way. The public is acutely aware of tax increases. Rather than incur the political cost of imposing a general tax on the public using its tax powers, economic mandates allow Congress and the President to escape accountability for tax increases by compelling citizens to make payments directly to private companies.

Indeed, scholars as diverse as Richard Epstein and Cass Sunstein have argued that the Takings Clause requires just compensation precisely to preserve political accountability in the provision of public goods. As Justice Scalia explained in the case of Pennell v. City of San Jose:

The politically attractive feature of regulation is not that it permits wealth transfers to be achieved that could not be achieved otherwise; but rather that it permits them to be achieved “off budget,” with relative invisibility and thus relative immunity from normal democratic processes.

Under modern jurisprudence, essentially the only check on Congress’s taxing and spending powers under the General Welfare Clause (as opposed to its regulatory power under the Commerce Clause) is political. So yes, Professor Tribe, there is a constitutional reason for depriving Congress of the power to do in one step what it could surely do in two other steps: to maintain that remaining constitutional qua political check. Indeed, the very reason why Congress adopted the individual mandate was because it lacked the political will – it feared political accountability too much – to impose single-payer universal coverage, where the government would first impose a tax on everyone and then provide health care (at this point it’s no longer “insurance”) to everyone.

To accomplish the same result without having to impose significant new taxes – as President Obama famously promised there would not be – Congress tried to evade political accountability through the individual-mandate mechanism. That’s why the Eleventh Circuit wisely declined to grant Congress the power to move a significant part of its spending “off budget” and “mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die.”

Most people are by now familiar with the broad strokes of the lawsuits challenging Obamacare: more than 30 cases around the country allege, among other claims, that the federal government lacks the constitutional authority to require people to buy a product (the individual health insurance mandate)—and the only way to avoid the mandate is to become poor. After decisions going both ways in the district courts, we are now at the appellate stage in five of those suits, including Virginia’s and the Florida-led 26-state effort.

Those who follow developments in constitutional law are also familiar with the broad legal arguments being made: that the power to regulate interstate commerce, even when read in the context of the power to make laws that are necessary and proper to executing that specified commerce power, does not include the power to force someone to engage in economic activity—to create, in effect, the commerce being regulated. Not even during the height of the New Deal did the government require this, and there are no parallels in the Civil Rights Era or since. (And also that Congress can’t do this under the taxing power for various reasons that I won’t go into here; even those courts ruling for the government have rejected the taxing power assertion.)

Finally, those who follow Cato are probably aware that I’ve been spending a good part of my time since Obamacare’s enactment in March 2010 in this area: filing briefs, writing articles, debating around the country, appearing in the media. And I’m not alone; our entire Center for Constitutional Studies has been involved in various capacities. Indeed, Cato Chairman Bob Levy himself produced a very useful Primer for Nonlawyers about what is the clearly the central constitutional and public policy debate of our generation.

Well, if anyone cares to peek beyond the curtain of how Cato’s legal efforts against Obamacare have evolved, I have an article on that forthcoming in the Florida International University Law Review. Here’s the abstract:

This article chronicles the (first) year I spent opposing the constitutionality of Obamacare: Between debates, briefs, op-eds, blogging, testimony, and media, I have spent well over half of my time since the legislation’s enactment on attacking Congress’s breathtaking assertion of federal power in this context. Braving transportation snafus, snowstorms, and Eliot Spitzer, it’s been an interesting ride. And so, weaving legal arguments into first-person narrative, I hope to add a unique perspective to an important debate that goes to the heart of this nation’s founding principles. The individual mandate is Obamacare’s highest-profile and perhaps most egregious constitutional violation because the Supreme Court has never allowed – Congress has never claimed – the power to require people to engage in economic activity. If it is allowed to stand, then no principled limits on federal power remain. But it doesn’t have to be this way; as the various cases wend their way to an eventual date at the Supreme Court, I will be with them, keeping the government honest in court and the debate alive in the public eye.

Read the whole thing, titled “A Long Strange Trip: My First Year Challenging the Constitutionality of Obamacare.”